Privacy versus speech in the Hulk Hogan sex tape trial; Los Angeles Times, 3/14/16

Erwin Chemerinsky, Los Angeles Times; Privacy versus speech in the Hulk Hogan sex tape trial:

"Indeed, this case reflects how the changing notions of privacy in society make it much harder to decide what would be offensive to the reasonable person and what isn't of public concern.

But juries, it's said, make decisions based on emotion, on the gut. Accordingly, St. Petersburg jurors may ultimately find it hard to accept that Gawker's speech rights reach into Bollea's bedroom, notwithstanding the plaintiff's lewd persona. There is a difference, after all, between talking about sex and watching it.

If the jury sides with Bollea, 1st Amendment absolutists will worry about the “chilling effect” the verdict may have on speech, and will claim it's impossible to draw a line between permissible and impermissible expression. Speech is speech.

But I can imagine a clear rule: No videos of people having sex should be made public unless all of the participants consent. I think the media will survive the restriction."